WOTUS Rule Expected Next Week

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Dry land would no longer be subject to Clean Water Act jurisdiction and the so-called "significant nexus" test would be eliminated in a newly proposed waters of the United States, or WOTUS, rule expected to be released by the EPA next week.

Both the New York Times and E&E News reported Thursday the rule is set for release next week. An agriculture source with knowledge of the rule told DTN the release would come "sometime next week."

The EPA did not respond to three DTN requests for comment.

Back in February 2017, the EPA published a signing statement in the Federal Register. That document indicated the agency was taking a different direction on a new rule, which would include a much narrower definition of WOTUS.

Citing an EPA memorandum they obtained, E&E News and the Times reported this week the new rule would exempt ephemeral streams and related features that are wet only after rain. The new proposal is said to cover only wetlands that are adjacent and connected to other jurisdictional waters.

Now former EPA Administrator Scott Pruitt indicated in the signing document that a rewrite may include the removal of the so-called "significant nexus" test. That test essentially brought even areas of dry land where water previously flowed under the EPA umbrella for CWA enforcement.

In the document signed by Pruitt in 2017, he indicated a new rule may throw out the significant-nexus standard.

"Today, the EPA and the Army announce their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the executive order," the document stated.

"In doing so, the agencies will consider interpreting the term 'navigable waters,' as defined in the CWA in a manner consistent with the opinion of Justice (Antonin) Scalia in Rapanos (v. U.S.). It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities."

Some legal challenges to the 2015 rule were filed based on changes EPA made to the rule following a public comment period. Those changes included setting actual distances between adjacent wetlands and jurisdictional waters. Plaintiffs have argued the agency should have made those proposals known prior to public comment periods.

EXPECTED CHANGES

The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The U.S. Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

In writing the WOTUS rule, however, the Obama EPA clung to the opinion of Justice Anthony Kennedy who suggested a significant-nexus test is valid.

"Wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,'" Justice Kennedy wrote.

"This definition may include wetlands without an actual hydrological connection to navigable-in-fact waters (but presumably not wholly isolated)."

LAND AS WATER

In the document signed by Pruitt, EPA suggested it will consider the plural opinion expressed by the late Scalia in Rapanos, who disagreed that the EPA has far wider jurisdiction on waters.

"In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody," Scalia wrote.

"The plain language of the statute simply does not authorize this 'land is waters' approach to federal jurisdiction."

In the document signed by Pruitt, the agency acknowledges "the question of what is a 'water of the United States' is one that has generated substantial interest and uncertainty, especially among states, small businesses, the agricultural communities, and environmental organizations, because it relates to the extent of jurisdiction for federal and relevant state regulations.

"... Through new rulemaking, the EPA and the Army seek to provide greater clarity and regulatory certainty concerning the definition of 'waters of the United States,' consistent with the principles outlined in the executive order and the agencies' legal authority."

In the spring of 2017, the EPA formally announced its intentions to rewrite the 2015 rule and even finalized a rule to suspend it while a rewrite continued. The rule to suspend was thrown out by a federal court in South Carolina, meaning a previous national injunction suspending the rule was no longer in effect.

LEGAL FIGHTS

Agriculture and other industry groups, along with state governments across the country, alleged the 2015 WOTUS rule expanded federal jurisdiction on waters not traditionally protected.

The definition of navigable waters was expanded in the WOTUS rule to include ditches, puddles and even dry areas where there was evidence of water previously.

Those areas, the Obama administration's EPA contended, should be considered waters of the U.S. because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

Agricultural and environmental groups along with state attorneys general, continue to fight it out in court on the 2015 WOTUS rule finalized by President Barack Obama's EPA.

There continues to be a split between which states fall under jurisdiction of the 2015 rule, as a result of a number of ongoing court actions and decisions in courts across the country.

This sent various plaintiffs across the country scrambling for legal protection against the 2015 rule that many industries agree greatly expanded EPA's authority over water, even on dry land.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(AG/BAS)